Appeal by plaintiffs from order entered 1 May 2007 by Judge
Henry V. Barnette, Jr., in Wake County Superior Court. Heard in
the Court of Appeals 13 December 2007.
The Brough Law Firm, by Michael B. Brough, for plaintiffs-
Smith Moore LLP, by James L. Gale, Bradley M. Risinger, and
James R. Holland, for defendant-appellee.
Rita Rakestraw, et al., (plaintiffs) appeal from order
entered by the superior court granting the Town of Knightdale's
(the Town) motion for summary judgment. We affirm.
On 30 August 2006, plaintiffs filed a complaint and sought a
declaratory judgment that an ordinance adopted by the KnightdaleTown Council (the Council) was void and of no effect. The
challenged ordinance and amendment rezoned an approximately 56.8
acre tract of land to a highway commercial conditional district.
Prior to the adoption of the ordinance, the northern portion of the
property was zoned for highway business and the southern portion
was zoned for urban residential. The tract of land is located on
the south side of Knightdale Boulevard between Widewaters Parkway
and Parkside Commons Drive.
Plaintiffs' complaint alleged: (1) the ordinance contained
some twenty variances from the Town's Unified Development
Ordinance (UDO); (2) the Town failed to properly send written
notice to all property owners entitled to such notice; (3) the
Town's Land Use Review Board (the Board) failed to comply with
any of the UDO notice requirements; (4) the ordinance had a
direct, substantial, and readily identifiable financial impact on
one of the Council's members and he was required to recuse himself
from voting; (5) the Town failed to prepare a written decision as
required by the UDO; and (6) the ordinance purports to change the
zoning of some 5.5 acres not included in any of the public hearing
On 16 October 2006, the Town filed a motion for summary
judgment stating there is no genuine issue of material fact and it
is entitled to judgment as a matter of law. On 17 November 2006,
plaintiffs filed their motion for summary judgment stating there is
no genuine issue of material fact, other than plaintiff's [sic]
contention that the ordinance is invalid because the [T]own failedto mail notices of the April 3, 2006 public hearing as required by
state statute and local ordinance, and they are entitled to
judgment as a matter of law. The case was heard in superior court
on 30 November 2006.
On 1 May 2007, the superior court filed its order granting
defendant's motion for summary judgment and denying plaintiffs'
motion for summary judgment. The superior court ruled: (1) the
Town complied with its notice responsibilities, and with the
overarching 'due process' concern which animates them; (2) the
Town complied with the requirements of N.C. Gen. Stat. § 160A-382
by approving a conditional district in the [o]rdinance which meets
the mandates of its UDO; and (3) the Council member had no
direct, substantial or readily identifiable financial interest in
the project underlying the [o]rdinance that he voted to approve.
The superior court dismissed plaintiffs' declaratory judgment
action with prejudice. Plaintiffs appeal.
Plaintiffs argue the superior court erred by granting the
Town's motion for summary judgement.
III. Standard of Review
Summary judgment is proper if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and that
any party is entitled to a judgment as a
matter of law. The party moving for summary
judgment ultimately has the burden of
establishing the lack of any triable issue of
A defendant may show entitlement to summary
judgment by (1) proving that an essential
element of the plaintiff's case is
non-existent, or (2) showing through discovery
that the plaintiff cannot produce evidence to
support an essential element of his or her
claim, or (3) showing that the plaintiff
cannot surmount an affirmative defense.
Summary judgment is not appropriate where
matters of credibility and determining the
weight of the evidence exist.
Once the party seeking summary judgment makes
the required showing, the burden shifts to the
nonmoving party to produce a forecast of
evidence demonstrating specific facts, as
opposed to allegations, showing that he can at
least establish a prima facie
case at trial.
We review an order allowing summary judgment
. If the granting of summary judgment
can be sustained on any grounds, it should be
affirmed on appeal.
Wilkins v. Safran, 185 N.C. App. 668, 672, 649 S.E.2d 658, 661
(2007) (internal citations and quotations omitted).
IV. Motion for Summary Judgment
Plaintiffs argue the superior court erred by granting the
Town's motion for summary judgment because: (1) the Town failed to
comply with its own notice and public hearing requirements; (2) the
public hearing notice posted on the tract of land did not meet the
requirements of N.C. Gen. Stat. § 160A-384(c); (3) a genuine issue
of material fact exists regarding whether notice was properly sent
to all eligible property owners; and (4) N.C. Gen. Stat. § 160A-382
does not authorize the Town to decrease certain requirements of the
underlying base district. We disagree.
A. Notice and Public Hearing Requirements
 N.C. Gen. Stat. § 160A-364(a) (2005) states: Before adopting, amending, or repealing any
ordinance authorized by this Article, the city
council shall hold a public hearing on it. A
notice of the public hearing shall be given
once a week for two successive calendar weeks
in a newspaper having general circulation in
the area. The notice shall be published the
first time not less than 10 days nor more than
25 days before the date fixed for the hearing.
In computing such period, the day of
publication is not to be included but the day
of the hearing shall be included.
Section 15.1D of the Town's UDO states:
Notification of all public hearings shall be
1. Newspaper Notice:
A notice shall be
published in a newspaper having general
circulation in the Town once a week for
two (2) successive weeks, the first
notice to be published not less than ten
(10) days nor more than 25 days prior to
the date established for the hearing. The
notice shall indicate the nature of the
public hearing and the date, time and
place at which it is to occur.
2. Sign to be Posted:
A prominent sign shall
be posted on the subject property(ies)
beginning not less than ten (10) days nor
more than 25 days prior to the date
established for the hearing. Such notice
shall state a phone number to contact
during business hours for additional
information. The sign shall remain until
after the decision-making authority has
rendered its final decision.
3. First-Class Mail Notification:
of the proposed action shall be sent by
first class mail from the Administrator
to the affected property owner and to all
contiguous property owners within 200
Plaintiffs contend the Town failed to properly give
notification of all public hearings . . . . as required by
Section 15.1D of the Town's UDO. We disagree. The general requirement of notice and public
hearing prior to the adoption or amending of a
zoning ordinance is subject to modification
depending upon the substantiality of the
change to be made following reconsideration.
Ordinarily, if the ordinance or amendment as
finally adopted contains alterations
substantially different (amounting to a new
proposal) from those originally advertised and
heard, there must be additional notice and
opportunity for additional hearing. However,
no further notice or hearing is required after
a properly advertised and properly conducted
public hearing when the alteration of the
initial proposal is insubstantial. . . .
Moreover, additional notice and public hearing
ordinarily will not be required when the
initial notice is broad enough to indicate the
possibility of substantial change and
substantial changes are made of the same
fundamental character as contained in the
notice, such changes resulting from
objections, debate and discussion at the
properly noticed initial hearing.
When reconsideration is followed by a vote to
confirm an ordinance previously adopted or by
a vote to make insubstantial modifications in
the adopted ordinance, further notice and
hearing are not called for: residents are
already apprised of its text and effect and
the Council has had the benefit of hearing the
Sofran Corp. v. City of Greensboro
, 327 N.C. 125, 130-31, 393
S.E.2d 767, 770 (1990) (internal citation and quotation omitted).
1. Newspaper Notice
On 22 March and 29 March 2006, the Town published in the
Eastern Wake News a notice of public hearing to be held by the
Council on 3 April 2006. The notice stated:
ZMA-2-06 Village Park Commons:
requesting a Zoning Map Amendment to rezone
51.3-acres of the 56.8-acre parcel located on
the south side of Knightdale Boulevard between
Widewaters Parkway and Parkside Commons Driveand identified as Wake County PIN 1744.09 84
3240 from Highway business (HB) and Urban
Residential (UR12) zoning districts to Highway
Business Conditional District (HB CD) in order
to subdivide the property into 11 lots and to
develop a shopping center - community center
with approximately 430,650 square feet of
retail and commercial use. The remaining 5.5-
acres are to be rezoned from Urban Residential
(UR 12) zoning district to Urban Residential
Conditional District (UR CD). The applicant is
identified as Michael F. King of Kennedy,
Covington, Lobdell & Hickman, LLP on behalf of
the developer Wakefield Associates. The
property owner [sic] is identified as Jane
Suggs and Norwood and Nancy Hargrove.
Based on our Supreme Court's reasoning in Sofran Corp.
hold the 22 March and 29 March 2006 newspaper publications are
legally sufficient so long as no substantial change to the proposed
ordinance occurred as it moved toward passage and those interested
parties were informed when the additional meetings would be held.
327 N.C. at 130-31, 393 S.E.2d at 770. Plaintiffs presented no
evidence tending to show either a substantial change to the
proposed ordinance occurred or that those interested parties were
not informed when the additional meetings would be held.
2. Sign to be Posted
Plaintiffs admit a sign was posted on the right-of-way of
Knightdale Boulevard adjacent to the tract of land in question,
prior to the first public hearing before the Council on 3 April
2006, and that this sign remained until after the rezoning
amendment to the ordinance was adopted. Plaintiffs contend the
sign gave no indication that the Board would hold public hearings
on 10 April 2006 and 12 June 2006 and that the sign does not comply
with the requirements of N.C. Gen. Stat. § 160A-384. Here, the sign posted was approximately twenty-four by thirty-
six inches in size and read: Town of Knightdale PUBLIC HEARING
PROPERTY NOTICE - For More Information: [phone number]. The sign
met all requirements of section 15.1D, subsection 2 of the Town's
UDO. Under the terms of the Town's UDO, the sign need not give
notice of dates of the Board's subsequent meetings.
N.C. Gen. Stat. § 160A-384(c) (2005) states, [w]hen a zoning
map amendment is proposed, the city shall prominently post a notice
of the public hearing on the site proposed for rezoning or on an
adjacent public street or highway right-of-way. The statute does
not state any required contents of the notice of public hearing.
Plaintiffs contend the posted notice requirements should be
governed by the same standards used for that of published notice:
the sign must fairly and sufficiently apprise those whose rights
may be affected of the nature and character of the action proposed.
See Sellers v. City of Asheville
, 33 N.C. App. 544, 549, 236 S.E.2d
283, 286 (1977) (To be adequate, the notice of public hearing
required by G.S. 160A-364 must fairly and sufficiently apprise
those whose rights may be affected of the nature and character of
the action proposed.).
We agree with the superior court's order that other notice
methods are designed to give the public more specific information,
while the posted sign is designed as part of the overall notice
scheme to identify and locate the property that is the subject of
the public hearing process. The superior court properly found theTown's posted notice sufficient to meet the requirements of N.C.
Gen. Stat. § 160A-384(c) and section 15.1D of the Town's UDO.
3. First-Class Mail Notification
Plaintiffs argue a genuine issue of material fact exists
regarding whether all eligible property owners received written
notification and the Town should have sent written notice to all
eligible property owners of each meeting held regarding the
N.C. Gen. Stat. § 160A-384(a) (2005) requires the person or
persons, who mailed the notice of public hearing to all eligible
property owners, to certify that the notification was sent. N.C.
Gen. Stat. § 160A-384(a) further states that such certificate
shall be deemed conclusive in the absence of fraud. Here, on 21
June 2006, Sheila H. Hardin, the Town's Zoning Technician,
certified to the Council that she had mailed notice to all
properties in accordance with the provisions of N.C. Gen. Stat. §
160A-384 and section 15.1D of the Town's UDO.
Plaintiffs contend the affidavits of thirteen property owners,
alleging they did not actually receive written notice from the
Town, creates a genuine issue of material fact regarding whether
the Town complied with its mail notification requirements.
Plaintiffs have not alleged any fraud in the mailing on the part of
the Town or the Town's Zoning Technician. In the absence of fraud,
Ms. Hardin's 21 June 2006 affidavit is deemed conclusive that the
Town complied with the notice requirements. The superior court
properly concluded no genuine issue of material fact existed,regarding whether all eligible property owners received
notification as required by N.C. Gen. Stat. § 160A-384 and section
15.1D of the Town's UDO.
Based on our Supreme Court's reasoning in Sofran Corp.
hold that the original written notification sent to eligible
property owners was legally sufficient so long as there was no
substantial changes to the proposed ordinance as it moved toward
passage and those interested parties were informed when the
additional meetings would be held. 327 N.C. at 130-31, 393 S.E.2d
at 770. Plaintiffs presented no evidence that tended to show
either a substantial change to the proposed ordinance occurred,
that those interested were not informed when the additional
meetings would be held, or that any fraud had occurred in the
mailing of the notices.
B. N.C. Gen. Stat. § 160A-382
 Plaintiffs argue N.C. Gen. Stat. § 160A-382 allows the
imposition of conditions that bring the project more into
conformity with the requirements of the ordinance, but does not
allow the Council to grant exceptions that lower the standards of
the ordinance for a particular developer. We disagree.
N.C. Gen. Stat. § 160A-382(b) (2005) states:
[c]onditions and site-specific standards
imposed in a conditional district shall be
limited to those that address the conformance
of the development and use of the site to city
ordinances and an officially adopted
comprehensive or other plan and those that
address the impacts reasonably expected to be
generated by the development or use of the
Plaintiffs contend the Town can only enforce the standards of
an underlying district or more restrictive conditions, and N.C.
Gen. Stat. § 160A-382 does not permit exceptions or decreased
standards. We disagree. Section 15.17 of the Town's UDO states,
when a Conditional District is . . . require[d] . . . petitioners
may also ask that certain standards identified be decreased. The
challenged rezoning ordinance lists twenty exceptions, or
[A] duly adopted zoning ordinance is presumed to be valid and
the burden is on the complaining party to show it to be invalid.
Williams v. Town of Spencer
, 129 N.C. App. 828, 830-31, 500 S.E.2d
473, 475 (1998) (citing Heaton v. City of Charlotte
, 277 N.C. 506,
513, 178 S.E.2d 352, 356 (1971)). Here, plaintiffs merely state,
[n]one of the [twenty] exceptions brings the development more
into compliance with the ordinance or helps lessen the adverse
impacts of this massive commercial project. In fact, they have
exactly the opposite effect. Accordingly, they are inconsistent
with the enabling act . . . .
The superior court properly found the Town to have complied
with this enabling requirement by approving a conditional district
in the [o]rdinance which meets the mandates of its UDO. We hold
plaintiffs have failed to carry their burden to show the Town's
ordinance to be invalid.
This assignment of error is overruled.
Reviewing the superior court's order granting the Town's
motion for summary judgment de novo
, the pleadings, depositions,answers to interrogatories, and admissions on file, together with
the affidavits, . . . show that there is no genuine issue as to any
material fact and that [the Town] is entitled to a judgment as a
matter of law. Wilkins
, 185 N.C. App. at 672, 649 S.E.2d at 661
(quotation omitted). The superior court's order granting the
Town's motion for summary judgment is affirmed.
Judges STEELMAN and ARROWOOD concur.
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